URBAN TRANSPORT AUTHORITY v DE SOUSA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, MEAGHER and CRIPPS JJA 22 June 1993, 22 June 1993 [1993] NSWCA 277 Negligence — running down case — contributory negligence — apportionment. ORDERS 1. Appeal and cross appeal dismissed. 2. Appellant to pay two thirds of the respondent's costs of the appeal. 3. No order as to costs in the cross appeal. Cripps JA On 16 February 1982, at about 12.30 pm, Mr Manuel Francisco Alho wasseriously injured when he was struck by a bus owned by the Urban Transit Authority and driven by Gladys Pearce. He died on 18 August 1983, but not as a result of the injuries he received in the accident. Maria De Sousa, as the administratrix of his estate, sued the Authority and the driver in the Supreme Court claiming damages. On 17 April 1991 Master Greenwood awarded her $81,315. He found negligence had been established and he assessed damages in the sum of $162,630, which he then reduced by 50%, holding that Mr Alho was 50% to blame. The judgment was entered for only one defendant, the first defendant, who appealed on a number of grounds, three of which were abandoned. It maintains, however, that Master Greenwood erred in finding negligence in apportioning blame, on the assumption negligence was made out, by Mr Alho at only 50%. The facts of the litigation were not complicated. The deceased was struck by a bus when he was in the centre lane of the west-bound carriageway of Oxford Street at a point about 100 feet west of the intersection of Riley Street and Oxford Street. The bus was owned by the appellant and driven by Gladys Pearce. The point of impact was established by the police officer at about 15 feet north of the southern kerb of Oxford Street. That is, on the southern edge of the centre lane of the carriageway, that being the lane in which the bus was travelling as it passed through Riley Street. The reasons for Master Greenwood's conclusions on negligence derive almost entirely from the evidence of Gladys Pearce, the driver of the bus. She said when she entered the intersection of Oxford and Riley Streets she saw three men standing in the lane next to the median strip. As I have said, she was in the centre lane. The southern, or kerbside lane, was occupied by parked cars. Mr Toomey QC has read extensively from Ms Pearce's evidence and I need not set it out in detail here. He correctly identifies, I think, that the nub of the matter arises from her evidence at 20 and 21 of the appeal book. She was asked: "Q: Did something happen in respect of those men soon after you saw them? A: Yes. I was prepared to stop because it was obvious they were going to cross the road, or that was their idea. Q: And they were facing south, were they, facing towards the kerb on your side of the road? 2 UNREPORTED JUDGMENTS A: When I first saw them I don't know which way they were looking. They were just a group of three men there, so I slowed down and one of them ran across the road and he reached the kerb - he had plenty of time to do it, and I looked and the older gentleman was looking straight at me." I interpose to mention the elderly gentleman was the deceased. "Q: That's one of the two who were left? A: Yes. Q: And did you continue to look at him? A: Yes, I looked at him because I was looking and sort of asking 'Are you going to or not?' and he stayed with the other man, so naturally I thought: well, T'll go. I was prepared to stop if he moved, and as I went he ran. Q: And how far from him were you when he ran? Can you give us your best estimate? A: Lam looking at this room again. It would be less than from here to the wall. About twenty feet. Twenty to thirty feet. Q: And did he walk or did he run? A: No, he ran, but he was an old gentleman. Q: So he didn't run fast? A: No." She was asked why she did not take any other evasive action by swerving. She said if she had moved to the right she would have hit the other man who had moved into the centre lane. If she had moved to the left, she would have hit the parked cars. As it appears, she did not slow down because she thought that she was not going to strike the deceased. In his judgment, Master Greenwood acknowledged that a driver when passing through a busy shopping centre is not obliged to drive on the assumption that pedestrians will unexpectedly dart from the footpath into the path of the driver's vehicle, but he has noted, by implication at least, that was not this case. The deceased was standing on the road and the driver saw him. He was an elderly man. The driver saw one of his companions run across the road and cross the centre lane. It is not disputed she had ample time to stop. Instead, in my view, she gambled on the deceased remaining static or, as Master Greenwood put it, elected to go forward and not to regard the deceased as if he was going to move. In my opinion, not only has it been shown that Master Greenwood has not erred in finding that the driver was negligent in the circumstances, in my view, he was correct. I would for my part dismiss the appeal. So far as the other aspect of the appeal is concerned, it is submitted by Mr Toomey that we should regard the finding of contributory negligence as to apportionment as inappropriate, bearing in mind what he submits was the essential responsibility of the deceased. In my view, this submission must be rejected. The Master made his own assessment of the apportionment of responsibility and I can see no reason why this Court should interfere with it. There have been a number of decisions, not all of which I will refer to, but starting with Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494 in which the observation is made that a finding of apportionment if made by a judge is not lightly to be reviewed. There are other observations of this Court in, for example, Civil v Glastonbury Steel Fabrications Pty Ltd, (New South Wales Court of Appeal, 15 October 1985, unreported) and Jones v Brown (New South Wales Court of Appeal, 1 November 1985, unreported) to the same effect. In my opinion, Master Greenwood's apportionment should not be disturbed. URJ URBAN TRANSPORT AUTHORITY v DE SOUSA (Priestley JA) 3 The cross appeal centres upon two matters. It is now no longer submitted that the trial judge erred in finding contributory negligence. Rather, it is submitted that he erred in apportioning blame fifty/fifty. I think I need to say no more about this submission than that which has already been mentioned in respect to the submission of the appellant. Master Greenwood made his apportionment upon his assessment of the contribution each party made to the accident and not only do I think it has not been demonstrated that he erred, but even if he had the difference between what I think would be the extreme of the range and what he found would be such as not to warrant any intervention by this Court. So far as damages are concerned, the administratrix was awarded $40,000 general damages. As I have said, the deceased was badly injured in the accident. Master Greenwood at 63 of the appeal book referred to the injuries he suffered and the course those injuries took. He had a severe brain injury and he suffered orthopaedic injuries and doubtless the accident was, from his point of view, a serious one. However, unfortunately, Mr Alho died 18 months after the accident from causes, as it was found and not challenged, unassociated with the accident. Had he lived longer and seen out his then life expectancy, it may have been - and I express no view about this - regarded as an inadequate compensation for general damages. However, what he had to be compensated for was the pain and suffering from the time of the accident, which was severe, and remained severe, until he died. Accepting, as I do, Mr Letcher QC's submission that the pain and suffering which he suffered at the beginning would probably be worse than the pain and suffering he would have suffered had he continued to live, I am nonetheless of the opinion that it has not been demonstrated that the award of $40,000 was inadequate. My proposals are therefore that both the appeal and cross appeal be dismissed and that there be no order as to costs. Priestley JA Perhaps I should indicate I agree with what Cripps JA has said concerning both the appeal and the cross appeal, but we might hear what counsel wish to say about the costs. I reserve what I have to say about that until we have heard counsel. Meagher JA I would dismiss the appeal. I would also dismiss the cross appeal. In each case I would deal with the costs. (Counsel addressed on costs.) Priestley JA Following some discussion concerning appropriate costs orders, Mr Toomey, for the unsuccessful appellant, has suggested that a practical order would be, bearing in mind what would happen or what would be likely to happen if the usual costs orders were made, for the Court to say that in the appeal the appellant is to pay two thirds of the respondent's costs and in the cross appeal there should be no order as to costs. That appeals to the Court as a sensible way of dealing with has happened in the matter. In view of there being no opposition to that from counsel for the respondent in the appeal, those are the orders the Court makes. 1. Appeal and cross appeal dismissed. 2. Appellant to pay two thirds of the respondent's costs of the appeal. 3. No order as to costs in the cross appeal. UNREPORTED JUDGMENTS Representation; Counsel for the Appellant: B Toomey QC/W Willmott Solicitors for the Appellant: Gordon and Johnstone Counsel for the Respondent: D Letcher QC/GS Poole Solicitors for the Respondent: Bowen and Gerathy